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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                                  This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
January 20, 2005
A party may file with the Supreme Court a
                                                                                 Cornelia G. Clark                                               petition to review an adverse decision by the
                                                                                 Clerk of Court of Appeals                                       Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                                                 and RULE 809.62.
                                                                                                                                                 Cir. Ct. No.   03CV005235
Appeal No.                                                                       03-3201
STATE OF WISCONSIN                                                                                                                               IN COURT OF APPEALS
DISTRICT I
THE HAYS BENEFITS GROUP OF WISCONSIN, LLC,
PLAINTIFF-APPELLANT,
V.
PALMER & CAY OF WISCONSIN, LLC, ANTHONY P.
FIORETTI, GWEN M. HASSLINGER, GREG HUBLEY, AND
N. MELISSA TOBLER,
DEFENDANTS-RESPONDENTS.
APPEAL from an order of the circuit court for Milwaukee County:
MAXINE A. WHITE, Judge.  Affirmed.
Before Deininger, P.J., Dykman and Lundsten, JJ.
¶1                                                                               PER CURIAM.    The Hays Benefits Group of Wisconsin appeals a
summary judgment order dismissing its breach-of-contract action against former




No.   03-3201
employees who it alleged had violated certain nonsolicitation agreements, and an
interference-with-contract claim against their new employer.   We affirm.
¶2                                                                                    We first note that this court reviews summary judgment decisions de
novo, applying the same method employed by the circuit court.    Brownelli v.
McCaughtry,  182  Wis.  2d  367,  372,  514 N.W.2d  48  (Ct. App.  1994).    That
method is well established and need not be repeated here.   See, e.g., Lambrecht v.
Estate of Kaczmarczyk, 2001 WI 25, ¶¶20-24, 241 Wis. 2d 804, 623 N.W.2d 751.
¶3                                                                                    Shortly after four employees of Hays left the insurance brokerage
firm to work at a competing firm, the competing firm acquired the account of
Hays’s single largest customer.   At the time of his employment with Hays, one of
the employees had signed an agreement providing:
5.2.2   During the term of this Agreement and for a period
of   eighteen                                                                         (18)   months   from   the   date   of
Employee’s  voluntary  termination  or  termination
for Cause, Employee will not directly or indirectly
solicit or accept business from any then current or
former clients of HBGW, The Hays Group, Inc., or
their affiliates.
5.2.3   During the term of this Agreement and for a period
of   eighteen                                                                         (18)   months   from   the   date   of
Employee’s termination, Employee shall not solicit
or hire employees from HBGW, The Hays Group,
Inc., or their affiliates.
The other three employees had signed agreements providing that they would not,
during their employment or for eighteen months thereafter, “(a) solicit, divert, or
take away Employer’s customers;  (b) attempt to cause any of the Employer’s
customers to refrain from patronizing the Employer; or (c) recruit or attempt to
recruit or take away any employee of Employer, its subsidiaries and affiliates;
(d) assist any other person or persons in any attempt to do any of the foregoing.”
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No.   03-3201
Hays filed suit seeking to enforce the nonsolicitation agreements, but the circuit
court concluded that they were unenforceable as a matter of law.   We agree.
¶4                                                                                        WISCONSIN STAT. § 103.465 (2003-04)1 provides:
Restrictive covenants in employment contracts.
A covenant by an assistant, servant or agent not to compete
with his or her employer or principal during the term of the
employment  or  agency,  or  after  the  termination  of  that
employment  or  agency,  within  a  specified  territory  and
during a specified time is lawful and enforceable only if the
restrictions  imposed  are  reasonably  necessary  for  the
protection of the employer or principal.    Any covenant,
described  in  this  subsection,  imposing  an  unreasonable
restraint is illegal, void and unenforceable even as to any
part  of  the  covenant  or  performance  that  would  be  a
reasonable restraint.
¶5                                                                                        Hays  first  argues  that  WIS.  STAT.                                § 103.465  applies  only  to
noncompetition agreements, and that nonsolicitation agreements should be treated
differently.   However, in Equity Enterprises, Inc. v. Milosch, 2001 WI App 186,
¶¶2, 15, 247 Wis. 2d 172, 633 N.W.2d 662, we held that an employee’s agreement
not to solicit any of the employer’s customers was void under § 103.465 because it
did  not  contain  any  specified  geographical  territory.    We  see  no  significant
distinction between the nonsolicitation clauses at issue here and the one in Equity
Enterprises and, therefore, conclude that the territorial limitation requirement of
the statute applies.
¶6                                                                                        Hays next contends that this court in Equity Enterprises improperly
ignored the supreme court’s holding in Rollins Burdick Hunter of Wisconsin,
Inc. v. Hamilton, 101 Wis. 2d 460, 466, 304 N.W.2d 752 (1981), that a territorial
1  All references to the Wisconsin Statutes are to the 2003-04 version unless otherwise
noted.
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No.   03-3201
restriction can be established not only by explicit geographical terms, but also by
reference to “a particular group of forbidden customers or clients.”   To the extent
that Hays is arguing that we should overrule Equity Enterprises with respect to
the need for an explicit geographic reference, we must reject the argument.   This
court cannot overrule a prior opinion.
¶7                                                                                       To the extent that Hays is arguing that Rollins survives on that point
because Equity Enterprises did not address it or could not overrule it, we are not
persuaded  that  Rollins  compels  a  different  result  here.     We  note  that  the
agreements here applied to all customers of Hays and any of its affiliates, past and
present, wherever they might be located in the world.   Thus, the agreements would
prohibit the former employees from contacting clients from branches and affiliates
of Hays in other states and countries with whom the former employees would have
had no contact whatsoever during their employment.    This does not imply the
same territorial limitation that, in Rollins, could be inferred from a much more
specific list of actual customers.   In other words, the agreements at issue here are
so broad that they still represent an unreasonable and unenforceable restraint of
trade, even if some implied territorial restriction based on more narrowly tailored
customer lists might have been permissible under Rollins.
By the Court.—Order affirmed.
This opinion will not be published.   WIS. STAT. RULE 809.23(1)(b)5.
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